366 



THE LTARIUTIES; OF PARTIES IIIIXTING, ETC. 



Gate of 

 Station left 

 open where 

 there is no 

 statutable 

 oblig'ation . 



the liighway crossed by tlie Railway on a level. One of 

 the gates across the end of the road where it was crossed 

 by the line of Railwaj' having been left open, the Horses 

 strayed through it on to the Railway, where they were 

 soon afterwards killed by one of the Company's Trains. 

 An action was brought by the plaintiif against the Railway 

 Company, who contended that the Horses were, under the 

 circumstances, trespassers on the Highway. But it was 

 held by the Court of Queen's Bench, that the plaintiif was 

 entitled to recover the value of his Horses from the Com- 

 pany, because the obligation imposed on them bj^ Statute 

 5 & 6 Vict. c. 55, s. 9, to keep the Grates closed, was not 

 only against Cattle travelling on the road but also against 

 all Cattle straying there (e). 



In the preceding case it will be observed that there was 

 an express statutable obligation to keep the gate closed 

 across the road under all circumstances ; consequently, the 

 Company were guilty of committing a wrong, in omitting 

 to do so. But under the Railway Clauses Consolidation 

 Act(/), s. 68, the obligation of a Railway Company is 

 merely to fence against the owners and occupiers of adjoin- 

 ing lands, and therefore where some Horses strayed into a 

 high road, and thence into the yard of a Railway Station, 

 the gate of which was open, from which they got on the 

 line through a gap in the fence, and were killed by a train, 

 it was held that the Company were not responsible for the 

 injury, inasmuch as their obligation under 8 & 9 Yict. 

 e. 20, s. 68, is co-extensive only with the Common Law 

 prescriptive obligation to repair fences, which would only 

 render them responsible, if the Horses were using the high- 

 way according to the dedication of the ow^ner of the soil (r/). 

 So, where a Colt had strayed on to a highway, and whilst 

 being driven home escaped into a Railway-yard and thence 

 on to the line, and was killed, the Company were held 

 liable, as the Colt was then lawfully using the highway (A). 

 But if the adjoining land belongs to the Company, and 

 Cattle stray thence on to the line, and are killed, the Com- 

 pany are not liable ; nor if Cattle are by the permission 

 of the Company grazing on the slopes or embankments of 



(«) Faiccett v. York and Korth 

 Midland Baihray Co., 16 Q. B. 

 610; -S'. C, 15 "Jur., Q. B. 173; 

 S. C, 20 L. J., Q. B. 222. 



(/) 8 & 9 Vict. e. 20. 



(ff) Manchester, Sheffield and Lin- 

 colnshire Raihcay Co. v. WalUs, 14 

 C. B. 213. 



(/() Midland Eaihvai/ Co. v. Bay- 

 l-in, 17 C. B. 12G. 



